Transport Workers' Union of Australia

[2016] FWCD 5450

[2016] FWCD 5450

DECISION

Fair Work (Registered Organisations) Act 2009
s.159—Alteration of other rules of organisation
Transport Workers' Union of Australia
(R2016/120)
MR ENRIGHT	MELBOURNE, 11 AUGUST 2016
Alteration of other rules of organisation.

[1]        On 20 June 2016 the Transport Workers' Union of Australia (the Union) lodged with

the Fair Work Commission a notice and declaration setting out particulars of alterations to the

rules of the Union.

[2]        The particulars set out alterations to rule 8(1) by deleting the current sub rule and

replacing with ‘As from 1 January 2017 the Annual Fee is $518.00 (+GST)’.

[3]        An issue arises about whether the alterations have been made under the rules of the

Union.
[4]	The declaration was signed by the President of the Union, Mr Anthony Sheldon.

Paragraph 8 of Mr Sheldon’s declaration stated that, on 19 May 2016, a duly constituted

meeting of the National Council resolved unanimously to amend the rules in accordance

with the proposed amendments as required by sub-rule 85(2)(b).

[5]        Paragraph 7 of Mr Sheldon’s declaration stated:

In accordance with the powers given under rule 33(2)(c), the National Secretary called

the National Council meeting. Dermot Ryan, on behalf of the National Secretary

provided notice of the National Council meeting to each Branch of the Transport

Workers’ Union of Australia.

[6]        Rule 33 provides that the National Secretary is the chief executive officer of the

Union and details the powers and functions of that office. These functions include among

other things, the summoning of all meetings of National Council and the National

Committee of Management and the giving of notice of these meetings to Branches of the

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Union.

[7] There is nothing elsewhere in the rules of the Union which allows the National

Secretary to delegate that duty.
[2016] FWCD 5450

[8]        It therefore appears that an aspect of the Branch’s rule altering procedure has not

been strictly complied with. In accordance with the Fair Work (Registered Organisations)

Act 2009 (RO Act), I am required to be satisfied that the alterations have been made under

the rules of the organisation.

[9]        In Master Builders’ Construction and Housing Association of the Australian Capital

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Territory I discussed in some detail the question of whether an organisation must strictly

adhere to requirements of its rule altering procedure. In this decision, I referred to the

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principles enunciated in Project Blue Sky v ABA (Project Blue Sky) and Re: Australian

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Principals Federation.

[10]      In Project Blue Sky, the joint judgement of the majority of the High Court found that

an act done in breach of a condition regulating the exercise of a statutory power was not

necessarily invalid and of no effect. The majority disproved of distinguishing between

obligations by reference to their characterisation as ‘directory’ or ‘mandatory’. A better

approach was to ask whether it was the purpose of the legislation that an act done in breach

of the provision should be invalid.

[11]      In Re: Australian Principals Federation, the principles enunciated in Project Blue

Sky were applied to the alleged non-compliance with the rules of an unincorporated

association. Here the Full Bench held the issue was not whether an instance of non-

compliance had occurred but whether an act which did not strictly comply with the rules has

no effect.

[12]      Applying the same reasoning to the facts before me, I find there was non-compliance

with rule 33(2)(d). However, as discussed above, the relevant question to ask is whether it is

intended that the non-compliance with the rule results in invalidity.

[13]      Having regard to rule 33(2)(d) and to the rules as a whole, I do not find the non-

compliance results in invalidity in this instance. It appears to me that the object of rule

33(2)(d) is that of the Secretary ensuring that all Branches receive proper notice of the

meeting, in this case at which the proposed alterations received consideration. In this

instance, I note the Secretary caused notice to be sent. There is no question that the

Branches were not provided with the requisite notice, notwithstanding that this notice was

not provided by the Secretary. The steps not taken under r 33(2)(d) are in my view

procedural and the lack of strict compliance with rule 33(2)(d) not fatal to the application.

[14]      Accordingly, I am satisfied that the alterations have been made under the rules of the

organisation.

[15]      On the information contained in the notice, I am satisfied the alterations have been

made under the rules of the organisation.

[2016] FWCD 5450

[16]      In my opinion, the alterations comply with and are not contrary to the Fair Work

(Registered Organisations) Act 2009, the Fair Work Act 2009, modern awards and enterprise

agreements, and are not otherwise contrary to law. I certify accordingly under subsection

159(1) of the Fair Work (Registered Organisations) Act 2009.

DELEGATE OF THE GENERAL MANAGER

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Rule 33(2)(d).

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[2013] FWCD 3600.

3

Project Blue Sky v ABA 1998] HCA 28; 194 CLR 355; 28 April 1998; Brennan CJ, McHugh, Gummow, Kirby and Hayne

JJ.

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Appeal by the Australian Education Union against the decision of Vice-President Ross of 27 January 2006; Lawler VP,

Kaufman SDP, Smith C; 26 September 2006; PR973525.